A recent contest over which of two wills should be approved by the court for the distribution of a deceased estate illustrates how advancing age and infirmity must be accounted for when determining legal capacity.

Marie Greer died in 2015 leaving her husband Kevin and sons Stephen and Stuart. Kevin also had two daughters, Lisa and Karyn and a son, Mark from his first marriage.

Both Kevin and Marie had made wills in 2001 in favour of each other and after their deaths, in favour of Stuart. On her death, Marie’s entire estate passed to Kevin.

It was then agreed that Kevin would transfer the family home at Cornubia to Stuart for him to sell and apply the proceeds to construct a granny flat for Kevin to occupy on acreage property at Carbrook being purchased by Stuart and his wife.

The acquisition of the acreage property fell through. Stuart sold the home Kevin had transferred to him and with those funds purchased a two story residence – also in Cornubia – with the intention of converting its ground level into a self-contained flat for Kevin to occupy.

By February 2016, Kevin’s physical and cognitive health began to deteriorate sharply to the extent that just 12 months later he needed level 4 care. He was placed into respite care initially for just two weeks but as a result of an injury to Stuart, that period had to be extended.

Kevin greatly resented the placement at Tricare at Pimpama and was enraged that the promised granny flat had not been built as promised. He reached out to Karyn – from whom he had been estranged by reason of Stuart’s preferment as sole beneficiary – and asked her to remove him as his attorney and help change his will.

Knowing that these changes would require a medical assessment of Kevin’s capacity, Karyn went ahead in March 2017 to handwrite a template will and have Kevin formally sign it in the absence of such an assessment.

By then he was suffering a long list of medical problems including significant memory loss and difficulty in even recollecting his address and even name of his children. It was observed through scans that his brain was atrophying with significant ischaemic white matter disease.

Kevin died in July 2017, aged 80 yrs.

By his second will, his estate was left to Karyn, Lisa and Mark with Stuart specifically excluded.

Stuart promptly sought probate in the Supreme Court of Queensland on the strength of the first will. This was objected to by Mark who contended that the second will was Kevin’s only valid will.

The trial judge Justice Jean Dalton ruled against Mark by deciding there was insufficient proof that Kevin had the requisite legal capacity when making the second will.

He appealed.

On appeal the trial judge’s reasons were meticulously examined and the appeal judges observed that the burden of proof was on Mark to prove the testator’s legal capacity when making the second will.

The court noted that “while extreme age or grave illness are circumstances that will attract the vigilant scrutiny of the Court, neither is, of itself, sufficient to establish incapacity”. The trial judge had – it confirmed – rightly considered surrounding circumstances to hold that Kevin did not, on the balance of probabilities, have the requisite capacity.

Such evidence included that of geriatrician Aisling Fleury who had assessed Kevin as lacking capacity to revoke his power of attorney and dementia psychiatrist Gerard Byrne who had diagnosed dementia from the various tests Kevin had undertaken and from the brain scans performed.

Mark further contended though that because the second will was rational on its face, it should be presumed to be valid in law. Rejecting that submission Justice John Bond – who delivered the lead judgement – noted that the rationality of an estate disposition in a will cannot overcome a proven absence of testamentary capacity.

Justice Bond explained the decision as to testamentary capacity was not grounded on an inference that Kevin suffered from cognitive impairment for a long or continuous period. Rather, it was based on the conclusion that Kevin suffered from “significant cognitive impairment” at the time of the execution of second will.

The judgment reinforces the importance of determining testamentary capacity at the time of the execution of a will. The question will always be a factual one and hence the elements that should be considered will vary from case to case. It also makes clear that the courts will not assume that a will has been validly made just because its contents may appear to be rational.

Greer v Greer [2021] QCA 143, Sofronoff P and Bond JA and Wilson J, 16 July 2021